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People Ex Rel. Ward v. Moran

OPINION FILED JUNE 4, 1973.

THE PEOPLE EX REL. JOHN H. WARD, STATE'S ATTORNEY, PETITIONER,

v.

GEORGE J. MORAN, JUDGE, ET AL., RESPONDENTS.



Original petition for writ of mandamus.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

We granted leave to the State's Attorney of Christian County to file an original action for mandamus seeking to compel respondent, the Appellate Court, Fifth District, to vacate that portion of its judgment which granted probation to respondent, Harold Broverman.

Broverman was convicted of theft and forgery following a bench trial in the circuit court of Christian County on January 27, 1970. After hearing evidence in mitigation, the trial court sentenced him to concurrent terms of 1 to 3 and 1 to 5 years in the penitentiary. The appellate court affirmed these convictions but vacated the sentences and directed the trial court to admit him to probation under such terms and conditions as might be set by the trial court. (People v. Broverman (1972), 4 Ill. App.3d 929.) The narrow issue presented is whether the appellate court was vested with authority to order that respondent be so admitted to probation.

Initially we note that the pertinent provisions of the Criminal Code and Code of Criminal Procedure hereinafter discussed have been repealed. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1008-5-1, effective January 1, 1973.) However, such repeal does not affect this cause for the judgment herein was entered prior to the effective date of such repeal. See Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1008-2-1.

There is no constitutional right to probation. (People v. Molz (1953), 415 Ill. 183, 188.) Granting of probation is designed to provide a method for the rehabilitation of a defendant "provided the trial court be satisfied there is a reasonable ground to expect both that the defendant will be reformed and the interests of society will be subserved." People ex rel. Barrett v. Bardens (1946), 394 Ill. 511, 517.

The Code of Criminal Procedure of 1963 contains the probation provision applicable to this case (Ill. Rev. Stat. 1969, ch. 38, par. 117-1), which in pertinent part reads:

"(a) A person who has been found guilty of any offense except a capital offense, the sale of narcotics or rape may be admitted to probation when it appears that:

(1) The defendant is not likely to commit another offense;

(2) The public interest does not require that the defendant receive the penalty provided for the offense; and

(3) The rehabilitation of the defendant does not require that he receive the penalty provided for the offense."

The Committee Comments to this section stated that "probation should be left to the sound discretion of the trial court which is in a position to weigh the interests of society and the individual in each case." (S.H.A. (1964), Committee Comments, ch. 38, par. 117-1, page 5.) In recently interpreting the scope of review of a denial of probation by the trial court under this section we said, "Its [the trial court's] determination is subject to review to the extent of ascertaining whether the trial court did, in fact, exercise discretion or whether it acted in an arbitrary manner." People v. Saiken (1971), 49 Ill.2d 504, 514-15.

Respondents contend that a reviewing court is empowered by Supreme Court rule to "reduce the punishment imposed by the trial court." (50 Ill.2d R. 615(b)(4).) It is their position that probation may be classified as a punishment within the aforementioned provision.

This court has consistently held that probation has been a purely discretionary matter vested in the trial court, and the scope of review from a denial of an application for probation has been traditionally limited. Compare People v. Wheeler (1932), 349 Ill. 230, 234; People v. Kessler (1946), 394 Ill. 26, 27; People v. Syer (1948), 400 Ill. 444, 446, with People v. Molz (1953), 415 Ill. 183, 190; People v. Carpenter (1953), 1 Ill.2d 347, 350; People v. Saiken (1971), 49 Ill.2d 504, 514-15.

Respondents, while enumerating several recent appellate court cases (People v. Steadman (1972), 3 Ill. App.3d 1047; People v. Palmer (1971), 2 Ill. App.3d 934; People v. McClendon (1970), 130 Ill. App.2d 852, but see People v. Dugger (1972), 7 Ill. App.3d 235; People v. Brown (1967), 83 Ill. App.2d 411) which have reduced sentences of imprisonment to probation, have not cited, nor has our research ...


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